Additional Information: DACA Decision in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021) (“Texas II”)

General

1.  What is the latest information regarding Deferred Action for Childhood Arrivals (DACA)?

  • On July 16, 2021, the U.S. District Court for the Southern District of Texas declared the DACA policy “illegal” and vacated the June 15, 2012, memorandum issued by the Department of Homeland Security (DHS) that created DACA. It remanded the memorandum to DHS for further consideration.
  • The court further issued a permanent injunction (PDF, 401.59 KB) prohibiting DHS’s continued administration and reimplementation of DACA without compliance with the Administrative Procedure Act, but temporarily stayed the permanent injunction as to individuals who obtained DACA on or before July 16, 2021, including individuals with renewal requests.

2.  What did the court’s order say? What does that mean?

  • The July 16, 2021, order from the Southern District of Texas specifically allows DHS to continue to accept initial as well as renewal requests.
  • Therefore, consistent with this order, U.S. Citizenship and Immigration Services (USCIS), a component of DHS, will continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization, but will not grant initial DACA requests after July 16, 2021, and their accompanying requests for employment authorization. USCIS will continue to grant or deny renewal DACA requests, according to existing policy.
  • DHS will comply with this court order while it remains in effect. DHS is working with the Department of Justice (DOJ) to seek appeal of the district court’s decision.
  • DHS will also continue to engage the public in a rulemaking process to preserve and fortify DACA, consistent with the January 2021 presidential memorandum.

3.  Is the DACA policy over?

  • No. While the court order does not allow USCIS to approve initial DACA requests, we are presently able to continue processing DACA renewals and associated applications because the court temporarily stayed its injunction as to these requests.
  • Moreover, USCIS will continue accepting initial DACA requests. However, pursuant to the July 16, 2021, order from the Southern District of Texas, DHS is prohibited from granting initial DACA requests after July 16, 2021, and their accompanying requests for employment authorization.
  • USCIS will continue to:
    • Adjudicate requests for DACA renewals and associated applications for employment authorization documents (EADs) and advance parole.
    • Accept and process applications for advance parole and replacement EADs from DACA recipients.

4.  What does this recent court decision mean if I am:

  • A current DACA recipient: If you currently have DACA and your work authorization has not expired, your DACA is still in effect, and you are eligible to request renewal at the appropriate time.
  • A renewal DACA requestor: Individuals requesting DACA on a renewal basis may continue to submit DACA requests. USCIS will continue to process and issue a decision on your renewal DACA request.
  • An initial DACA requestor: While USCIS will accept your initial DACA request, we are prohibited from granting initial requests or an accompanying application for employment authorization while the court order from the Southern District of Texas remains in effect. If you have an initial DACA request pending, your request is on hold while the court order remains in effect.
  • For more information about submitting initial DACA requests or renewal DACA requests, see additional questions and answers below.

5.  What is considered an “initial” DACA request?

  • An initial request for DACA includes:
    • A first-time request for DACA;
    • A request filed by an individual who was previously granted DACA but did not request renewal within one year of the expiration; or
    • A request filed by an individual whose most recent DACA grant was terminated.

6.  What is considered a “renewal” DACA request?

  • A renewal DACA request includes:
    • A request filed by an individual with a current DACA grant; or
    • A request filed by an individual who has a DACA grant that expired less than a year ago.

7.  What does this mean if I have an initial DACA request currently pending with USCIS?

  • USCIS is not permitted to approve initial DACA requests or accompanying applications for employment authorization while the court order from the Southern District of Texas remains in effect. Therefore, if you have an initial DACA request pending with USCIS, your request will remain on hold in compliance with the court order. At this time, USCIS is holding cases, rather than rejecting or closing them. While USCIS holds these cases, they will remain pending, though under the July 16 court order USCIS is not able to grant the requests that are on hold. Because these cases will remain on hold while the court order is in effect, USCIS will not issue refunds for initial DACA requests that remain on hold while the court order is in effect.
  • USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.

8.  How will the Southern District of Texas decision affect the processing times for DACA requests?

  • At this time, USCIS cannot predict the effect this decision may have on processing times for initial DACA requests, as DHS is prohibited from approving initial requests or an accompanying applications for employment authorization under the court’s July 16 order. However, we maintain our goal of processing DACA renewal requests generally within 120 days and are committed to minimizing any processing delays for renewal requests.  You may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry online, please visit egov.uscis.gov/e-request.
  • Please Note: Factors that may affect the timely processing of your DACA renewal request include, but are not limited to:
    • Failure to appear at an Application Support Center (ASC) for a scheduled biometrics appointment to obtain fingerprints and photographs. No-shows or rescheduling appointments will require additional processing time;
    • Issues of national security, criminality or public safety discovered during the background check process that require further vetting;
    • Issues of travel abroad that need additional evidence/clarification;
    • Name/date of birth discrepancies that may require additional evidence/clarification; or
    • The renewal submission was incomplete or contained evidence that suggests a requestor may not satisfy the DACA renewal guidelines, and USCIS must send a request for additional evidence or explanation.

9.  I have another type of immigration benefit application or petition pending in addition to my DACA request. Does this court order impact my other benefit application or petition?

  • No. While this court order prohibits USCIS from granting initial DACA requests after the date of the order, July 16, 2021, and their accompanying requests for employment authorization, it does not affect other applications, petitions, or requests for immigration benefits.
Initials

10.  If I submit an initial DACA request on or after July 16, 2021, what will happen to my DACA request?

  • USCIS is continuing to accept initial DACA requests. If you file an initial DACA request with USCIS on or after July 16, 2021, you will receive a receipt notice, and USCIS will process your payment. However, USCIS will not adjudicate your request while the court order remains in effect.

11. I received notice that my initial DACA request was approved, but I am still waiting for my employment authorization card in the mail. How does the Southern District of Texas ruling affect me?

  • If USCIS approved your initial DACA request on or before July 16, 2021, your case has not been affected by the Southern District of Texas ruling. Please note, however, that if USCIS approved your request on or before July 16, 2021, your approval notice and EAD may arrive after that date.

12.  If I received a receipt notice for my initial DACA request, does that mean I was granted DACA?

  • No. A receipt notice demonstrates that USCIS has received your initial DACA request. It does not indicate that your request has been approved.

13. I completed biometrics for my initial DACA request on July 16, 2021. What will happen to my DACA request?

  • USCIS will hold your pending DACA request and will not issue a decision while the court order remains in effect.

14.  I filed an initial DACA request and am scheduled for a biometrics appointment after July 16, 2021.  What should I do?

  • As a result of the court order, all biometrics appointments for initial DACA requestors have been cancelled. If you have a biometrics appointment scheduled for after July 16, 2021 for an initial DACA request, you should not go to the appointment. Please see our DACA webpage for additional details. A cancelled biometrics appointment does not mean that your DACA request has been denied or that it will be denied in the future.  

15.  Will USCIS issue me a refund if I have filed an initial DACA request?

  • At this time, USCIS is not issuing refunds for pending initial DACA requests that remain on hold while the court order is in effect.
  • USCIS may issue further guidance on this subject as the Southern District of Texas litigation continues.

16.  I received a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) for my initial DACA request and that RFE or NOID is still pending. What should I do?        

  • Although USCIS is prohibited from granting your initial request due to the court order, you may respond to the RFE or NOID within the requested time frame. Ensuring your filing is complete will help USCIS to make a timely decision in your case if USCIS is permitted to resume adjudication of initial DACA requests in the future.
Renewals

17.  I currently have DACA and it is about to expire. Can I file for a renewal?

  • Yes. The court order has not impacted or changed the filing process for DACA renewals. If there is a change to the effectiveness or scope of the court’s order, USCIS will publish revised information.

18.  Should I renew early?

  • USCIS strongly encourages DACA recipients to file their renewal requests 120 to 150 days (four to five months) before the expiration of their current DACA validity period.

19.  Is there a chance USCIS will stop accepting DACA renewals in the future?

  • At this time, the court order has not impacted the filing process for DACA renewals. If that changes, USCIS will publish revised information.

20.  I had DACA and it expired within the last 12 months. Am I eligible to renew?

  • If you file after your most recent DACA period expired, but within one year of its expiration, a new request is considered a renewal request, not an initial request, and you may submit a request to renew your DACA pursuant to preexisting USCIS policy. The court order has not disturbed the filing process for DACA renewals.

21.  If it has been more than a year since my last grant of DACA expired, can I still apply for renewal?

  • If you submit a DACA request more than one year since your last grant of DACA expired or after your most recent DACA grant was terminated (at any time), your request is considered an initial request, not a renewal, pursuant to preexisting USCIS policy.
  • USCIS can accept initial DACA requests, but it is prohibited from approving them while this court order remains in effect.
  • You will be issued a receipt notice, and your payment will be accepted. However, the request will not be further processed, in compliance with the court order.

22.  I filed a timely DACA renewal request. It is still pending, and my prior DACA grant has expired.  Is my pending DACA request still valid, and will it, along with my application for employment authorization, be processed?

  • Yes, USCIS will continue to process timely filed DACA renewal requests and associated employment authorization applications. If that changes, USCIS will publish revised information. 
  • However, please note that consistent with long-standing DACA policy, if your DACA expires before USCIS approves your renewal request, you do not have DACA for the period between the expiration of your prior DACA and the start of your new period of DACA.

23.  I filed a DACA renewal request and am scheduled for biometrics after July 16, 2021. What should I do?

  • You should attend your scheduled biometrics appointment and proceed with the DACA renewal process.
Advance Parole

24.  Is advance parole open for DACA recipients right now? Can I apply for advance parole?

  • Yes. USCIS will continue to accept and adjudicate applications for advance parole for current DACA recipients.

25.  My advance parole application is still pending. Will USCIS process it?

  • Yes, at the present time the court’s order allows USCIS to continue to process applications for advance parole for current DACA recipients. If that should change, USCIS will provide updated information.

26.  I was approved for advance parole. How does the Southern District of Texas decision affect me?

  • If your application for advance parole has been approved, the order from the Southern District of Texas does not affect that approval. Please note, all individuals returning to the U.S. are still subject to immigration inspection at a port of entry.

27. I have DACA and am currently abroad using advance parole. Can I still return to the U.S. using my advance parole under DACA?

  • Yes, if you currently have DACA and are abroad using advance parole, you may return to the U.S. using your advance parole under the same conditions that were in effect before the order from the Southern District of Texas. Please note, all individuals returning to the U.S. are still subject to immigration inspection at a port of entry.

28. I filed an advance parole application and am scheduled for biometrics after July 16, 2021. What should I do?

  • You should attend your biometrics appointment and proceed with the advance parole application process.

29.  I have DACA and I need to travel abroad for emergency reasons now. What should I do?

  • If you currently have DACA, you may apply for advance parole. If you are experiencing an extremely urgent situation, you may request an emergency advance parole appointment at your local field office through the USCIS Contact Center. You should bring the following items to your appointment:
    • A completed and signed Form I-131, Application for Travel Document;
    • The correct Form I-131 filing fee;
    • Evidence to support the emergency request (for example, medical documentation, death certificate, etc.); and
    • Two passport-style photos.
  • For more information, please see the DACA Frequently Asked Questions.
Employers

30.  What should I do if my current or new employee is a DACA recipient?

  • While portions of the court’s order are stayed, the court order does not disturb the grant of deferred action or the validity of work authorization for current DACA recipients. USCIS will also continue to adjudicate requests for DACA renewal and associated applications for employment authorization. USCIS will also continue to accept and adjudicate applications for replacement EADs. Your current and new employees with DACA may continue to receive valid EADs after the date of the court order.
  • No action is required for current employees who are DACA recipients who have presented valid EADs.
  • New employees who are DACA recipients and who present valid EADs are also authorized to work. See I-9 Central for more information on completing Form I-9 for new employees as well as additional employment authorization documents DACA recipients may present.
  • The court’s decision is not a basis to ask any employee to show more or different documentation to verify or reverify their employment authorization on Form I-9.
  • If you participate in E-Verify, the system can confirm identity and employment eligibility for new employees who are DACA recipients with a valid and unexpired EAD. 
  • For information about the rights of employees, please see the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section’s information on employee rights.
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